After Kavanaugh, the deluge

By Ross Douthat

Published
2:36 pm EDT, Friday, July 13, 2018

In the second year of his presidency, Donald Trump has become more and more willing to act Trumpishly rather than deferring to the official wisdom of his party. But with his second Supreme Court nomination, notwithstanding all the head-fakes and reality-television atmospherics, Trump has demonstrated that he'll take his Trumpishness only so far. It's one thing to blow up the G-7 with trade wars and make nice with a murderous North Korean despot; it's quite another to disappoint the D.C. conservative legal establishment. So instead of the dark horses who caught his eye or the female rising star his base and some noisy columnists kept touting, he circled back to the best-known, deepest-resumed, most-vouched-for choice, and gave us Judge Brett Kavanaugh as the nominee.

Establishment choices tend to yield swift confirmations when your party controls the Senate, and assuming that no Lovecraftian horror lurks in his extensive paper trail, I would expect Kavanaugh to be confirmed narrowly but easily, with some skeptical abortion-related questions but little ultimate resistance from Republican Sens. Susan Collins and Lisa Murkowski. Because an important part of that paper trail was printed working under Kenneth Starr and George W. Bush, I would also expect some of the vulnerable Senate Democrats to feel more comfortable voting against him, citing his pro-business rulings and partisan political history, than they might have been against Amy Coney Barrett, whose higher-risk but higher-political-reward nomination the Trump White House decided to eschew.

So expect a party-line vote or close to that to replace Justice Anthony Kennedy with Kavanaugh, and then expect a court that moves to the right in some sense, but not necessarily in the most predictable of ways. Kennedy was famous for his swing votes, but he sided with the liberals only on a particular set of (yes, hot-button) cases, and Chief Justice John Roberts has been willing to play the swing vote in his own consensus-oriented, restraint-prioritizing way. So if Kavanaugh is even somewhat Roberts-esque (as his detractors on the right have feared) in his approach, you could end up with a court that is more conservative but also more cautious than the Kennedy-era court, which had a swing justice more likely to go all-in for whichever side he swung toward.

And then even if Kavanaugh proves aggressive (and his appellate record suggests he might be), and even if he frequently joins Clarence Thomas on the court's right flank, it's easy to imagine the prudent Roberts becoming still more cautious and consensus-oriented in response. Which is why the wisest take on the overall direction of the Supremes is the one that concludes Jack Goldsmith's recent analysis in The Weekly Standard: If you're expecting a broad "conservative revolution" as opposed to a gentle rightward drift, it will take "a sixth or seventh conservative justice" to deliver it.

But of course neither the liberals most panicked by Kennedy's retirement nor the conservatives who voted for Trump almost exclusively because of judicial nominations are focused on the general drift of the court; they're focused on those hot-button cases where Kennedy advanced the causes of social liberalism, and on abortion above all. And here Kavanaugh's elevation does promise to be a watershed — for the wider culture war if he (and Roberts) join Justices Thomas, Samuel Alito and Neil Gorsuch to overturn Roe v. Wade and Planned Parenthood v. Casey, and for internal Republican Party politics if he (or Roberts) imitate Kennedy and save abortion rights instead.

There will be time to discuss the first potential watershed, the possible post-Roe-Casey political landscape, in the months to come. But the second one is worth discussing briefly now, because the Kavanaugh appointment brings us to a testing moment for the conservative legal movement's political promise, delivered to social conservatives for years and decades now, that judges formed by its philosophy and principles would necessarily vote to overturn the post-1973 abortion regime and return the abortion debate to the democratic process.

Without that promise the current Republican coalition would not exist; without it the Federalist Society and all its intellectually impressive work wouldn't have millions of voters in its corner. And at the heart of the promise is a pledge that what happened in Casey, when three Republican-appointed jurists limited Roe's ambit but basically upheld its vision, will never happen again — so long as pro-lifers trust the process, trust originalist and textualist theory, trust the hyperqualified candidates the conservative legal movement puts forward.

I think abortion opponents will have that trust vindicated; I think a Roberts-Kavanaugh court, however restrained in other ways, will overrule Casey and allow the states to legislate freely on abortion once again. But this is not the view of many savvy court-watchers, many legal conservatives included, who expect at most a gradual widening of the room for second-trimester regulation. And if they're right and I'm wrong, if another Republican appointee writes another opinion that limits but still preserves a constitutional right to terminate unborn human lives, then the party unity that I expect around the Kavanaugh nomination will never be repeated, rebellions and disillusionment will divide the right's legal coalition, and pro-life voters will never trust the legal establishment's promises again.

The groundswell for Barrett, unusual in a nomination process, was a foretaste of what the rebellions would look like. And it's one indicator of a larger truth: One way or another, after Brett Kavanaugh, the politics of abortion will never be the same.